Hungary – Metropolitan Court, 5 October 2011, K.H. v. Office of Immigration and Nationality, 6.K. 34.440/2010/20
Keywords:
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Assessment of facts and circumstances
Description
The duty of the state to carry out an individual assessment of all relevant elements of the asylum application according to the provisions of Article 4 of the Qualification Directive, including considering past persecution and credibility; and the duty of the applicant to submit as soon as possible all statements and documentation necessary to substantiate the application. |
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Actor of persecution or serious harm
Description
Per Art. 6 QD actors who subject an individual to acts of serious harm (as defined in Art. 15). Actors of persecution or serious harm include: (a) the State; (b) parties or organisations controlling the State or a substantial part of the territory of the State; (c) non-State actors, if it can be demonstrated that the actors mentioned in (a) and (b), including international organisations, are unable or unwilling to provide protection against persecution or serious harm as defined in Article 7. |
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Credibility assessment
Description
Assessment made in adjudicating an application for a visa, or other immigration status, in order to determine whether the information presented by the applicant is consistent and credible. |
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Non-state actors/agents of persecution
Description
People or entities responsible for acts or threats of persecution, which are not under the control of the government, and which may give rise to refugee status if they are facilitated, encouraged, or tolerated by the government, or if the government is unable or unwilling to provide effective protection against them. |
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Previous persecution
Description
"The fact that an applicant has already been subject to persecution or serious harm or to direct threats of such persecution or such harm, is a serious indication of the applicant's well-founded fear of persecution or real risk of suffering serious harm, unless there are good reasons to consider that such persecution or serious harm will not be repeated.” “The concept of previous persecution also deals with the special situation where a person may have been subjected to very serious persecution in the past and will not therefore cease to be a refugee, even if fundamental changes have occurred in his country of origin. It is a general humanitarian principle and is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of the refugee." |
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Persecution (acts of)
Description
"Human rights abuses or other serious harm, often, but not always, with a systematic or repetitive element. Per Article 9 of the Qualification Directive, acts of persecution for the purposes of refugee status must: (a) be acts sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights, in particular the rights from which derogation cannot be made under Article 15(2) of the ECHR; or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a). This may, inter alia, take the form of: acts of physical or mental violence, including acts of sexual violence; legal, administrative, police and/or judicial measures which are in themselves discriminatory or which are implemented in a discriminatory manner; prosecution or punishment, which is disproportionate or discriminatory; denial of judicial redress resulting in a disproportionate or discriminatory punishment; prosecution or punishment for refusal to perform military service in a conflict, where performing military service would include crimes or acts falling under the exclusion clauses in Article 12(2). " |
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Persecution Grounds/Reasons
Description
Per Article 1A ofthe1951 Refugee Convention, one element of the refugee definition is that the persecution feared is “for reasons of race, religion, nationality, membership of a particular social group or political opinion“. Member States must take a number of elements into account when assessing the reasons for persecution as per Article 10 of the Qualification Directive. |
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Race
Description
One of the grounds of persecution specified in the refugee definition according to Article 1A ofthe1951 Refugee Convention. According to the UNHCR: “Race, in the present connexion, has to be understood in its widest sense to include all kinds of ethnic groups that are referred to as “races” in common usage. Frequently it will also entail membership of a specific social group of common descent forming a minority within a larger population. Discrimination for reasons of race has found world-wide condemnation as one of the most striking violations of human rights. Racial discrimination, therefore, represents an important element in determining the existence of persecution.” According to the Qualification Directive the concept of race includes in particular considerations of colour, descent, or membership of a particular ethnic group. |
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Membership of a particular social group
Description
One of the grounds of persecution specified in the refugee definition per Article 1A ofthe1951 Refugee Convention. According to the Qualification Directive, membership of a particular social group means members who share an innate characteristic, or a common background that cannot be changed, or share a characteristic or belief that is so fundamental to identity or conscience that a person should not be forced to renounce it, and that group has a distinct identity in the relevant country, because it is perceived as being different by the surrounding society. Depending on the circumstances in the country of origin, a particular social group might include a group based on a common characteristic of sexual orientation. Sexual orientation cannot be understood to include acts considered to be criminal in accordance with national law of the Member States: Gender related aspects might be considered, without by themselves alone creating a presumption for the applicability of this concept. |
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Discrimination
Description
Any distinction, exclusion, restriction or preference which is based on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise by all persons, on an equal footing, of all rights and freedoms. |
Headnote:
Refugee status was granted to a Kosovar family of Roma origin based on their ethnicity being recognised as a particular social group. The court found that they faced a risk of persecution and that state protection was either unavailable or ineffective.
Facts:
The applicant, a Kovoso national of Roma origin, claimed that he and his family suffered persecution on the basis of their ethnicity and due to the widespread discrimination against ethnic Roma in Kosovo. He claimed further that the state was not able to provide effective protection. The first application was rejected by the authorities. In the appeal procedure the Metropolitan Court ordered that a new decision be made by the authorities. In the second procedure the Office of Immigration and Nationality (OIN) again rejected the application based on the finding that the applicants’ were not credible.
Decision & reasoning:
The court granted refugee status to the applicants due to the fact that the first judgment had already established that the contradictions in the applicants’ statements were not relevant to assessing credibility. The court had ruled that the applicants’ Roma origin was established. However, the OIN still failed to evaluate the situation of Roma in Kosovo in its decision.
The court held that the applicants’ well-founded fear of persecution could be assessed and the acts of past persecution were serious enough to threaten their life, liberty and security.
The court found that the acts of persecution were connected with their Roma origin and could qualify as persecution according to the 1951 Refugee Convention based on the applicants' membership of a particular social group. The court found that state protection could only be considered effective if there were mechanisms to prevent acts of persecution (or seriously discriminatory acts) from occuring and not only to prosecute the perpetrators of past incidents.
Outcome:
Observations/comments:
Obiter Comments: No one can be required to continue their life in hiding in order to avoid the attention of persecutors and voluntarily surrender their basic human and fundamental rights. It cannot be held against the applicants that accounts of their previous traumatic experiences became more detailed as time progressed.
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| Hungary - Metropolitan Court - 17.K.35.216/2009/19 |
| Hungary - Metropolitan Court - 15. K. 31662/2009/16 |
Other sources:
UN High Commissioner for Refugees, UNHCR's Eligibility Guidelines for Assessing the International Protection Needs of Individuals from Kosovo, 9 November 2009.
Council of Europe, Advisory committee on the framework convention for the protection of national minorities, Second opinion on Kosovo adopted on 9 November 2009.